The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,

Meeting on 10 April 1984,

Adopts the following:

DECISION ON INADMISSIBILITY

1.1. The authors of the
communication (initial letter dated 2 1 September 1981 and three subsequent
letters) are the parents, brother and sister of M. A., a 27-year old Italian
citizen and right-wing political militant and publicist, who joined as
submitting party by letter of 16 February 1982 and numerous further letters.

1.2. The alleged victim is
M. A. who at the time of submission was serving a sentence upon conviction
of involvement in "reorganizing the dissolved fascist party", which is
prohibited by an Italian penal law of 20 June 1952. By order of the Court of
Appeals of Florence, M. A., was conditionally released and placed under
mandatory supervision on 29 July 1983.

1.3. The authors do not
specify which articles of the Covenant have allegedly been violated. It is
generally claimed that M. A. was condemned to prison solely for his ideas
and that he has been deprived of the right to profess his political beliefs.

2. 1. In his communication
of 16 February 1982 M. A. stated, inter alia, that, although he had had
contacts with some of the organizers of the Fronte Nazionale Rivoluzionario
(FNR), he had not participated in the constitutive meeting of 22 January
1975. He disputed the accusation that he was one of the organizers of FNR
and challenged the fairness of the trial against him.

2.2. In their letter of 27
January 1982 the family of M. k. stated that he was born in Lucca, Italy, on
14 July 1956 and was 15 years old when he joined the Movimento Politico
Ordine Nuovo, which was dissolved t)y order of the Italian Ministry of the
Interior on 23 November 1973. Thereafter, M. A. participated in the cultural
organization of Movimento Sociale Italiano (right-wing party represented in
the Italian Parliament. MSI). In May 1977 he founded the "Committee against
repression and for the defence of the civil rights of anti Marxist political
prisoners". In June 1977 he founded the monthly newspaper Azione Solidarieta
and in October 1977 he became the cultural organizer of MSI in Bologna. He
went into exile in France in October 1978.

2.3. Court proceedings
against M. A. were initiated in 1974, when he was 17 years of age and he was
sentenced to four years' imprisonment on 11 May 1976 by the Arezzo Court of
Assizes. He was detained from September 1976 to April 1977, when he was
released on mandatory daily supervision. The Florence Court of Appeals
confirmed the sentence on 30 November 1977 and the Rome Court of Cassation
confirmed the judgement on I December 1978. In the meantime, however
(October 1978 according to the authors), M. A. went into exile in France.
There is no indication as to whether the mandatory daily supervision had
been lifted or other information explaining the circumstances in which he
left Italy. (The French "'Carte de Sejour" indicates that he entered France
on 6 January 1979). All these events, based on the information furnished by
the authors, took place prior to the entry into force for Italy of the
Covenant and Optional Protocol on 15 December 1978. Subsequent to this date,
on 6 September 1980, M. A. was extradited from France and imprisoned at the
Casa Circondariale di Ferrara in Italy. He claims that the extradition order
violated his rights, because he had been convicted of a political offence.

3. On 28 January 1982
the M. A. family stated that the same matter had not been submitted to
another procedure of international investigation or settlement.

4. The authors do not
specify which articles of the Covenant have allegedly been violated. It is
generally claimed that M. A. was condemned to prison solely for his ideas,
and that he has been deprived of the right to profess his political beliefs.

5. Various documents
submitted with the communication include copies of the judgements of the
Court of Assizes of Arezzo and Court of Appeals of Florence; a request for
amnesty directed to the President of the Republic of Italy; original of a
memorandum commenting on the evidence before the courts and the original of
a brief challenging the constitutionality of the Italian law of 20 June
1952.

6. By its decision of 16
July 1982, the Human Rights Committee transmitted the communication under
rule 91 of the provisional rules of procedure to the State party, requesting
information and observations relevant F the question of admissibility of the
communication, in particular in so far as it may raise issues under articles
19 (right to hold opinions and freedom of expression), 22 (freedom of
association) and 25 (right to take part in the conduct of public affairs) of
the International Covenant on Civil and Political Rights.

7. 1. By a note dated 17
November 1982, the Italian

Government objected to the
admissibility of the communication, inter alia, because the author "did not
specify in any way the violation of which he claims to be a victim, but is
merely asking for a review of his trial, since he believes that the Human
Rights Committee would have competence to declare him 'not guilty'. In these
terms, it is obvious that, so far as the 'request' of the authors of the
communication is concerned, the Committee is not competent to review the
sentence passed by the Italian courts".

7.2. The State party notes,
however, that:

when the Human Rights Committee
examined the documents received in the light of the relevant provisions of
the Covenant and, in so doing, acted "ex officio". it considered that it
would be advisable to obtain information regarding such connection as might
exist between the legal proceedings instituted against M. A. and articles
19, 22 and 25 of the Covenant.

In this connection, the Italian
Government, while considering that the conclusions referred to in the
preceding paragraph make any further comment superfluous, does not challenge
the examination carried out ex officio by the Committee and, in a spirit of
co-operation, wishes to make the following observations regarding the
admissibility of the communication on the basis that the latter does have
some bearing on the above-mentioned articles of the Covenant.

...

The legal proceedings against M.
A. led to the decision of the Arezzo Court of Assizes dated 28 April 1976,
confirmed by the decision of the Florence Court of Appeals dated 30 November
1977 and made final when the appeal to the Court of Cassation was dismissed
by decision of I December 1978.

The chronological order of
events, together with the legal decisions, show unequivocally that, at the
said periods, Italy was not bound by the United Nations Covenants or by the
Optional Protocol which came into force for Italy on 15 December 1978, that
is, after the decision of the Court of Cassation.

Accordingly, in the opinion of
the Italian Government, it follows that the communication is inadmissible on
the ground of lack of competence "ratione temporis".

The Italian Government is aware,
however, that the Committee. while stressing the communications will be
inadmissible if the facts which are subject of the complaint occurred before
the entry into force of the Covenant, deems itself competent, by virtue of
its earlier decisions, to take such facts into account if the author asserts
that the alleged violations had not ceased after the date of entry into
force of the Covenant. But in the present case it is clear from the dossier
that the author of the communication has not alleged any violation, nor has
he asserted that the alleged violations did not cease after 15 December
1978.

The author of a complaint,
communication or even request addressed to an international body can only
invoke the same violations as those already alleged in national proceedings
and for which he has not obtained satisfaction.

Accordingly, with a view to
ensuring that this aspect of the matter is properly reviewed, it is
necessary to consider the alleged violations referred to in the
communication in the light of the action taken in his defence by M. A. and
his lawyer in the proceedings before the Arezzo and Florence courts, and
also before the Court of Cassation.

On the basis of the papers
submitted in connection with the dossier, the reply is clearly in the
negative... If, on the other hand, it is decided to follow the course
adopted by the Human Rights Committee and to assume that the applicant is in
fact alleging violations of articles 19, 22 and 25 of the Covenant, it is
necessary to determine whether the author invoked the same rights before the
Italian courts.

In this connection, although the
said provisions of the Covenant could not be invoked by M. A.-because the
Covenant was not in force for Italy-it must be recognized that corresponding
provisions are to be found in articles 9, 10 and 11 of the European
Convention on Human Rights.

As is well known, the latter
Convention, which was ratified by Act No. 848 of 4 August 1955, forms an
integral part of Italian law. The application of these provisions can
therefore be referred directly to the Italian courts.

If M. A. considered in the
present case that his rights had been violated by the application of the Act
No. 645 of 20 June 1952, he should have asked for the relevant articles of
the European Convention to be applied immediately at first instance or,
failing that, on appeal to the Court of Cassation.

M.A. never invoked the said
provisions and never complained of the violation of rights which, according
to the Human Rights Committee, are the subject of the communication under
consideration.

The Italian Government therefore
considers that the communication is also inadmissible on the ground
indicated above.

Lastly, if it is none the less
intended to invoke the said articles of the covenant, it may be noted that
paragraph 3 of article 19 contains an explicit provision where by certain
restrictions, which must, however, be expressly stipulated by law and which
are necessary (a) for respect of the rights or reputations of others and (b)
for the protection of national security or of public order, or of public
health or morals, are deemed to be lawful. Similar restrictions are also
provided under articles 22 and 25.

However, an examination of the
indictment against M. A. shows that it is for "reorganizing the dissolved
fascist party" that is, for organizing a movement which has as its object
the elimination of the democratic freedoms and the establishment of a
totalitarian regime.

It is clearly a case of
restrictions "expressly stipulated by law (Scelba Law) and "which are
necessary... in a democratic society for the protection of national
security, public order

In light of the foregoing
considerations, the Italian Government considers that M. A.'s communication,
being inadmissible on the grounds referred to above, should also be deemed
inadmissible, by virtue of the restrictions provided for under article 19,
paragraph 3, article 22, paragraph 2, and article 25, since it is manifestly
devoid of foundation.

8. In response to the
State party's submission under rule 91, the author forwarded the following
comments dated 6 January 1983:

In its reply dated 17 November
1982, the Italian Government considers that the communication which I
submitted to You should be "inadmissible" because:

(a) "the Human Rights
Committee is not competent to review the sentence passed by the Italian
courts".

The Human Rights Committee
should, however, be deemed to have the competence and the power to do so,
inasmuch as it is the judicial organ which has to ensure that the provisions
of the Covenant are implemented by the Governments that are signatories to
it.

(b) the legal proceedings
against M. A. took place between 1971 and 1978" at which time "Italy was not
bound by the United Nations Covenants or by the Optional Protocol".

However, the Italian Government
knows that the legal proceedings against M. A. did not end in 1978, but
continued until 6 August 1980, on which date I was being held in prison in
Nice, France) when the French Government was asked by the Italian Government
to arrest M. A. (the Italian Government then applied for his extradition on
a charge of "reorganizing the dissolved fascist party" and other charges).

It thus follows that the alleged
violations did not cease following the date of entry into force of the
Covenant", but, in the present case, as is clear from the communication
which I have submitted to vou, they continued beyond the entry into force of
the Covenant and the Protocol since, on 6 August 1980, after the arrest of
M. A., the Italian Government applied for his extradition, under Act No. 645
of 20 June 1952. article 2 (1), in respect of the charge for which he had
been sentenced in Italy to four years' imprisonment (as can be seen from the
decision of the Aix-en-Provence Court (Chambre d'accusation), France, dated
5 September 1980).

The timing of events makes it
quite clear that the violations of one or more provisions of the Covenant
and subsequently the unlawfulness of his detention extend beyond the entry
into force of the Covenant and the Protocol.

(c) According to the
Italian Government, I "should have asked for the relevant articles of the
European Convention to be applied immediately at first instance, or, failing
that, on appeal to the Court of Cassation ".

It is, however, a well known
fact that, under articles 2 and 3 of the Italian Criminal Code it is for the
court itself to apply the law that is most favourable to the accused.

It is stated: "Nobody may be
punished for an act which, under a subsequent law, does not constitute an
offence: and, in the event of a conviction, it shall not be enforceable nor
have penal effects."

Consequently, it was not for M.
A. to request that the relevant articles of the European Convention be
applied; it was for the judges of the Arezzo Court of Assizes or of the
Florence Court of Appeals or, in the final instance, of the Court of
Cassation to apply them

9. On 10 January 1983,
the legal representative of M. A. submitted further comments, noting that:

(a) The violations did
not come to an end prior to 15 December 1978, which is obvious since he is
currently serving the sentence for which he was tried. Thus, the law applied
is still in force and the sentence against M.A. is being carried out;

(b) The restrictions in
the law applied in M.A.'s case are themselves based on a law which was
purportedly enacted in order to protect public safety, but which in reality
does not permit the expression of one particular ideology even by democratic
and non-violent means. Therefore it is a law that persecutes or
discriminates on the basis of ideology and as such is in violation of
article 18 of the Covenant. It is also inherently discriminatory because it
is aimed not at all allegedly "anti-democratic,, movements (anarchistic,
Leninist, etc.) but solely at movements with fascist leanings;

(c) These facts were also
put forward by legal counsel in proceeding; brought before the Italian
Courts...

10. In a further letter,
dated 25 June 1983, the author - informed the Committee of a decision taken
by the French Conseil d'Etat, dated 3 June 1983, published on 17 June 1983,
annulling the French extradition decree of 5 September 1980. The author
appealed to the Committee for assistance in obtaining his immediate release
from imprisonment, recalling that he has been detained in Italian prisons
since 6 September 1980. In an annex to this letter M. A. encloses the text
of the annulment decision, which was taken on the grounds of administrative
irregularities, in particular because the extradition decree was issued
without taking due account of the Law No. 79-387 of 11 July 1979 relative to
administrative acts in France.

11. 1. In a letter of 16 May
1983, M. A. informed the Committee that his legal counsel Mr. M. B. (name
deleted] had been arrested. There is no indication, however, that this has
any bearing on or relevance to the present case. In a further letter, dated
6 September 1983, the author in reply to a Secretariat request for
information informed the Committee that following the arrest of his
attorney, he has not taken a new legal representative. He also points out
that no further submissions on his behalf will be made in response to the
observations of the Italian Government.

11.2. The author also
indicates that, upon his application, the Court of Appeals of Florence on 29
July 1983 ordered his release from imprisonment and placed him under
mandatory supervision, prohibiting him from leaving the town of Lucca or
Italian territory and further restricting his political activity. The author
thus appeals to the Committee to intercede on his behalf in order to end his
state of "detention in liberty".

1 2. Before considering any
claims contained in a communication, the Human Rights Committee shall, in
accordance with Rule 87 of its provisional rules of procedure, decide
whether or not it is admissible under the Optional Protocol to the Covenant.

13.1. The Human Rights
Committee observes that in so far as the author's complaints relate to the
conviction and sentence of M. A. for the offence, under Italian penal law,
of "reorganizing the dissolved fascist party" they concern events which took
place prior to the entry into force of the International Covenant on Civil
and Political Rights and the Optional Protocol for Italy (i.e. before 15
December 1978) and consequently they are inadmissible under article 3 of the
Optional Protocol, as incompatible with the provisions of the Covenant,
ratione temporis.

13.2. In so far as the
authors' complaints relate to the consequences, after the entry into force
of the Covenant and the Optional Protocol for Italy, o f M. A.'s conviction
and sentence, it must be shown that there were consequences which could
themselves have constituted a violation of the Covenant. In the opinion of
the Committee there were no such consequences in the circumstances of the
present case.

13.3. The execution of a
sentence of imprisonment imposed prior to the entry into force of the
Covenant is not in itself a violation of the Covenant. Moreover, it would
appear to the Committee that the acts of which M. A. was convicted
(reorganizing the dissolved fascist party) were of a kind which are removed
from the protection of the Covenant by article 5 thereof and which were in
any event justifiably prohibited by Italian law having regard to the
limitations and restrictions applicable to the rights in question under the
provisions of articles 18 (3), 19 (3), 22 (2) and 25 of the Covenant. In
these respects therefore the communication is inadmissible under article 3
of the Optional Protocol, as incompatible with the provisions of the
Covenant, rations materiae.

13.4. M. A.'s additional
claim that the extradition proceedings, initiated by Italy while he was
living in France, constitute a violation of the Covenant, is without
foundation. There is no provision of the Covenant making it unlawful for a
State party to seek extradition of a person from another country. The claim
is therefore inadmissible under article 3 of the Optional protocol, as
incompatible with the provisions of the Covenant, rations materiae.